Arthur Morgan (Louth, Sinn Fein)
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Question 83: To ask the Minister for Justice, Equality and Law Reform when he will issue guidance to the gardaí on ways to explain to people the consequences of remaining silent pursuant to the changes introduced by the Criminal Justice Act 2007. [27013/08]

Dermot Ahern (Louth, Fianna Fail)
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Part 4 of the Criminal Justice Act 2007 amended the law governing the circumstances in which inferences could be drawn in criminal proceedings from a failure or refusal by the accused to account for certain suspicious circumstances which clearly call for an explanation when requested to do so by a member of the Garda Síochána either prior to or when being charged.

Part 4 also extended the range of offences in respect of which inferences could be drawn from a failure by a person to mention particular facts which he/she later relied on in his or her defence when being questioned by a member of the Gardaí either prior to or when being charged. These provisions now apply in respect of all arrestable offences — the limited provisions of section 5 of the Offences Against the State (Amendment) Act 1998 and section 7 of the Criminal Justice (Drug Trafficking) Act 1996 were repealed.

The operation of these inference-drawing provisions is governed by a number of important safeguards. In particular the provisions cannot be applied unless;

The accused was told in ordinary language (i.e. cautioned) what effect the failure of refusal might have;

The accused was afforded a reasonable opportunity to consult a solicitor before the failure or refusal occurred;

The Garda questioning was recorded by electronic means or the accused consented in writing to it not being so.

Furthermore a person may not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for suspicious circumstances or to mention particular facts i.e. corroboration is required.

Part 4 also provides that the Minister may make regulations that would include details on the form of caution or cautions to be used by the Garda Síochána as well as the withdrawal and replacement of cautions. This matter is currently being considered by officials of my Department.